King v. W.T.F.

• Decision Date: 18 February 2016
• Docket Number: A158146.,181420818
• Citation: 369 P.3d 1181,276 Or.App. 533
• Parties: Jennifer D. KING, Petitioner–Respondent, v. W.T.F., Respondent–Appellant.
• Court: Oregon Court of Appeals

276 Or.App. 533

369 P.3d 1181

Jennifer D. KING, Petitioner–Respondent,

v.W.T.F., Respondent–Appellant.

181420818

A158146.

Court of Appeals of Oregon.

Submitted Jan. 15, 2016.

Decided Feb. 18, 2016.

Emelia Gardner filed the brief for appellant.

No appearance for respondent.

Before ORTEGA, Presiding Judge, and LAGESEN, Judge, and GARRETT, Judge.

GARRETT

, J.

Respondent appeals from a judgment granting petitioner's request for a permanent stalking protective order (SPO) against him under ORS 30.866

.¹ He contends that there was insufficient evidence to support the trial court's entry of the SPO. We agree with respondent and, therefore, reverse.

Petitioner and respondent were involved in a three-year romantic relationship. Both were married to other people at the time. Petitioner ended the relationship, but the parties continued to have contact as friends. In late December 2013, petitioner ended the friendship by a written message instructing respondent to cease all contact with her. Notwithstanding that request, over the next few months, respondent continued to contact petitioner through emails, letters, text messages, and social media.

In April 2014, on Easter, petitioner discovered a bouquet of flowers on her doorstep, which she believed was from respondent. Although the flowers were unaccompanied by a card or message, petitioner testified that they were the exact bouquet of flowers that respondent had purchased for her during the course of their romantic relationship. In the meantime, respondent had created an online dating profile that displayed approximately 16 photographs of places where petitioner and respondent had planted daffodils and tulips for petitioner's birthday, in October 2013. Respondent then used that profile to view petitioner's existing dating profile almost daily during the month of April.

In early August 2014, petitioner learned that respondent had accepted a job in the same city as she and that respondent was moving there without his family.² Shortly thereafter, respondent joined a gym that petitioner had previously attended and began attending workout classes. By that time, petitioner no longer went to the gym and, therefore, did not have further contact with respondent there. On several occasions, petitioner encountered respondent at two Starbucks locations near respondent's work place and gym. The first time was on August 28, when petitioner saw respondent with a group of people. Although the parties made eye contact, respondent did not attempt to speak or otherwise contact petitioner. In early September, petitioner again saw respondent at Starbucks, standing at a table near the entrance. As with the first encounter, neither party engaged the other. On September 27, petitioner reactivated her online dating profile. Beginning on September 29, respondent resumed viewing petitioner's profile daily until petitioner deactivated her account in early October.

On October 7, 2014, petitioner was at a Starbucks when respondent got in line behind her. The parties made eye contact; respondent said "hello my friend" and told petitioner, "You look good" and "It's good to see you." Petitioner was unresponsive at first but then asked respondent if he was happy that he had stripped away everything in her life. Respondent answered, "No, I'm not happy, you know I'm not happy. You know I don't have what I want." Respondent offered to buy petitioner's coffee, and petitioner declined. Petitioner left, and respondent followed her out to the parking lot to continue the conversation. He repeatedly stated that he was "not happy" and did not have what he wanted. At one point, when the car parked next to petitioner began to back out, respondent grabbed petitioner's arm and told her to be careful. Petitioner yelled at respondent to get away; respondent put his hands up and stepped back.

Several days later, on the morning of October 13, 2014, petitioner arrived at Starbucks with her son. It was petitioner's birthday. Respondent was there, sitting at a table by himself. Although petitioner's son had waved to respondent, respondent left without making contact with petitioner or her son. On her way out, petitioner noticed an envelope and a bag of coffee on a stool next to the door; her name was written on the envelope multiple times in different handwriting. Inside was a birthday card that had been signed by employees from multiple Starbucks locations.³ Later that day, petitioner filed for an SPO.

At the hearing on her petition, petitioner, representing herself, testified that she felt "endangered" and "invaded" by respondent's behavior. In response to the trial court's query about what she was afraid of, petitioner explained:

"I'm afraid that one day his obsession will peak. That if he can't have me, nobody else will. It's I don't understand how it's been this long and he still does this. I—I don't know if he would hurt me, or if he would just take me, or if he would just hurt somebody that was close to me. I don't know, but I know I can't live like this anymore."

Petitioner also testified that, although respondent had never threatened her, she believed that he was nevertheless "capable" of hurting her:

"[PETITIONER]: "I think it would be easier for all of us if [I] could sit here and say he threatened me, or he did this, or he did this. Has he outright * * * threatened me? No. * * * If I had the black and white case to sit there and say yes he threatened to do this to me on this day, no. But being in the relationship with a man for three years I know what he's capable of. I know when he looks at me and says, you know, T don't have what I want. You know what I want.' It's not something that I can put tangibly in front of you, except I know after three years what that is.

"THE COURT: What is that?

"[PETITIONER]: That is I will stay on this trail until you remember that we're supposed to be together. And I honestly just think that until I'm with him, that he will continue this until he hurts me or somebody close to me to get my attention."

At the conclusion of that hearing, the trial court granted petitioner's request for a permanent SPO. The trial court found that respondent had engaged in multiple unwanted "contacts" with petitioner and that petitioner was subjectively alarmed or coerced as a result of those contacts.⁴

Moreover, the trial court concluded that, in light of respondent's "clear desire to continue" the parties' past romantic relationship and respondent's obsession "with petitioner," it was objectively reasonable for petitioner to have been alarmed or coerced. Finally, the court concluded that the contacts caused petitioner reasonable apprehension regarding her personal safety:

"In this case, unwanted sexual relationship by definition is a danger to one's personal safety. And in this case, the respondent's pursuit of such [a] relationship with the petitioner is frankly relentless, and it is appearing to be escalating, culminating in this October 7th and then October 13th incidents."

"When the sufficiency of the evidence supporting an SPO is challenged on appeal, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record is legally sufficient to permit that outcome." Van Hoesen v. Williams, 271 Or.App. 466, 467, 351 P.3d 808 (2015)

. We review the trial court's factual findings for "any evidence" and its legal conclusions for errors of law. Id.

ORS 30.866(1)

, Oregon's civil stalking statute, provides:

"(1) A person may bring a civil action in a circuit court for a court's stalking protective order or for damages, or both, against a person if:

"(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person's immediate family or household thereby alarming or coercing the other person;

"(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and

"(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household."

To obtain an SPO under ORS 30.866(1)

, a petitioner must prove, by a preponderance of the evidence, that each requirement of that statute has been met. Miller v. Hoefer, 269 Or.App. 218, 222–23, 344 P.3d 121 (2015). First, a petitioner must "demonstrate that there were two or more unwanted contacts with either the petitioner or a member of the petitioner's immediate family within the previous two years." Christensen v. Carter/Bosket, 261 Or.App. 133, 139, 323 P.3d 348 (2014). The term "contact" includes "almost any interaction with the petitioner." Id. at 140, 323 P.3d 348. See ORS 163.730(3) (defining "contact").

A petitioner must also show that she was "subjectively alarmed or coerced by each contact and that the alarm or coercion was objectively reasonable for a person in the victim's situation." Brown v. Roach, 249 Or.App. 579, 583, 277 P.3d 628 (2012)

(internal quotation marks omitted). In the SPO context, "alarm" means to "cause apprehension or fear resulting from the perception of danger," while "coerce" means "to restrain, compel or dominate by force or threat." See ORS 163.730(1), (2). The term "danger" refers to "a threat of physical injury, [and] not merely a threat of annoyance or harassment." Brown, 249 Or.App. at 586, 277 P.3d 628. Finally, "the contacts, cumulatively, [also] must give rise to subjective apprehension regarding the petitioner's personal safety or the personal safety of a member of the petitioner's immediate family or household, and that apprehension must be objectively reasonable." Blastic v. Holm, 248 Or.App. 414, 418, 273 P.3d 304 (2012). "To determine whether a petitioner's apprehension is objectively reasonable, we consider ‘all of the circumstances of the parties' relationship.’ " Tesema v. Belete, 266 Or.App. 650,...